<the CAFC reversed a lower court claim construction ruling, based in part, on the findings of USPTO examiners in patent reexamination, explaining:

Because an examiner in reexamination can be considered one of ordinary skill in the art, his construction of the asserted claims carries significant weight.

in hoping to leverage this thinking, TDM America LLC, a plaintiff of the United States Court of Federal Claims, sought to undo an earlier adverse Markman Order and summary judgment of non-infringement. TDM sought relief under Fed. R. Civ. P. 60(b) arguing that a recently concluded ex parte patent reexamination of the patent at issue constituted new evidence requiring relief from the earlier judgment. TDM argued that, as in St. Clair, the claim scope statements of the reexamination record carry significant weight, and were contrary to the court's earlier Markman and SJ findings.

Interestingly, the court agreed that a patent reexamination that concludes after judgement does qualify as "newly discovered" evidence (citing St Clair) under Fed. R. Civ. P. 60(b).,....>

I do not see how this applies to our situation. What is your point?

Opty